Contractual and non-contractual liability the doctrinal debate in Spain

Abstract

According to some comparatists, the relationship between contractual liability and non-contractual liability is determined by the basic characteristics of the non-contractual liability system. These same basic characteristics also determine the definition of the areas that are relevant for the study of the relationship between both kinds of liability (zones of overlap and grey zones, versus mixed or border zones). With this point of departure, this work suggests an explanation of the obscure doctrinal debate that exists in Spain. To do so, I propose to identify two extreme or pure theoretical positions (the non cumul rule of the French tradition and the rule of option, that fits better with solutions of the Germanic tradition) and to describe some intermediate positions that combine elements of the first two. To understand these strange combinations of the intermediate positions is crucial to have a better explanation of the doctrinal debate existing among us.